ORIENTAL GEMCO PVT. LTD., Jaipur V. DCIT, Jaipur

ITA 369/JPR/2014

• Counselvise Citation: 36923114 RSA 2014
• Duration Of Justice: 1 year(s) 5 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-10-2015
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 08-05-2014
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: RAJ MEHRA JCIT DR DHK
• Keywords: Opportunity of being heard

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES (SMC), JAIPUR JH VKJ-IH-RKSYKUH] U;KF;D LNL; DS LE{K BEFORE: SHRI R.P. TOLANI, JUDICIAL MEMBER VK;DJ VIHY LA-@ ITA NO. 369/JP/2014 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2008-09 M/S. ORIENTAL GEMCO (P) LTD. 3571, NIGAM HOUSE, MSB KA RASTA, JOHRI BAZAR, JAIPUR CUKE VS. THE DCIT CIRCLE- 2 JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO .: AAACO 6637 N VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI P.C. PARWAL, CA JKTLO DH VKSJ LS@ REVENUE BY :SHRI RAJ MEHRA, JCIT -DR LQUOKBZ DH RKJH[K@ DATE OF HEARING : 06/10/2015 ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 08/10/2015 VKNS'K@ ORDER PER R.P. TOLANI, JM THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST T HE ORDER OF THE LD. CIT(A)-II, JAIPUR DATED 10-03-2014 FOR THE ASSESSME NT YEAR 2008-09 WHEREIN THE ASSESSEE HAS RAISED FOLLOWING GROUNDS: - 1. THE LD. CIT(A) HAS ERRED ON FACTS AND IN LAW I N UPHOLDING THE REJECTION OF THE BOOKS OF ACCOUNT BY APPLYING PROVISIONS OF SECTION 145(3) OF THE ACT. 2. THE LD. CIT(A) HAS ERRED ON FACTS AND IN LAW IN CONFIRMING THE ACTION OF THE AO IN MAKING TRADING A DDITION OF RS. 5,62,236/- BY DISALLOWING 25% OF ALLEGED UNV ERIFIABLE PURCHASES OF RS. 22,48,947/- 3. THE LD. CIT(A) HAS ERRED ON FACTS AND IN LAW IN NOT FOLLOWING THE CONSISTENT VIEW TAKEN BY HON'BLE ITA T JAIPUR ITA NO. 369/JP/2014 M/S. ORIENTAL GEMCO (P) LTD. VS. DCIT, CIRCLE- 2, J AIPUR . 2 BENCH, JAIPUR IN NUMBER OF CASES THAT WHERE PURCHASES ARE UNVERIFIABLE PURCHASES, BOOKS OF ACCO UNTS ARE TO BE REJECTED BUT ADDITION CANNOT BE MADE BY DISAL LOWING 25% OF THE PURCHASES, RATHER APPROPRIATE GROSS PROF IT RATE IS TO BE APPLIED CONSIDERING THE PAST HISTORY OF THE C ASE AND OTHER SURROUNDING CIRCUMSTANCES. 2.1 DURING THE COURSE HEARING, THE LD. AR OF THE AS SESSEE CONTENDS THAT THIS BENCH OF ITAT IN BUNCH OF APPEALS BY CONSOLID ATED ORDER IN THE CASE OF ANUJ KUMAR VARSHNEY & OTHERS VS. ITO (ITA NO. 18 7/JP/2012 DATED 22-10-2014) HAS HELD THAT 15% OF UNVERIFIABLE PURCH ASES SHALL BE HELD TO BE INCOME OF THE ASSESSEE FROM UNDISCLOSED SOURCES IN THE RELEVANT YEARS. THEREFORE, THE APPEAL MAY BE DECIDED IN VIEW OF THE ITAT ORDER. HOWEVER, AT THE SAME TIME, IT IS PLEADED THAT BOTH REVENUE AND ASSESSEE HAVE GONE IN APPEAL BEFORE HON'BLE RAJASTHAN HIGH COURT AGAINST THIS BUNCH OF ORDERS. 2.2 THE LD. DR HAS ALSO CONFIRMED THAT REVENUE HAS GONE IN APPEAL BEFORE THE HON'BLE RAJASTHAN HIGH COURT. 2.3 AT THE END OF THE ARGUMENTS, BOTH THE PARTIES A GREED THAT THE ISSUE IN QUESTION MAY BE SET ASIDE TO THE FILE OF THE AO TO DECIDE THE SAME AFRESH AFTER THE JUDGEMENT RENDERED IN THE CASE OF ANUJ KUMAR VARSHNEY & OTHERS VS. ITO (SUPRA) BY HON'BLE RAJASTHAN HIGH COURT, AFTER GIVING THE ASSESSEE A REASONABLE OPPORTUNITY OF BEING HEAR D IN ACCORDANCE WITH LAW. ITA NO. 369/JP/2014 M/S. ORIENTAL GEMCO (P) LTD. VS. DCIT, CIRCLE- 2, J AIPUR . 3 2.4 I HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. THERE IS MERIT IN TH E PROPOSAL OF BOTH THE PARTIES. ACCORDINGLY, THE ISSUE RAISED IN ASSESSEE' S APPEAL IS SET ASIDE AND RESTORED BACK TO THE FILE OF THE AO TO DECIDE THE S AME AFRESH AFTER THE JUDGMENT OF HON'BLE RAJASTHAN HIGH COURT IN THE CA SE OF ANUJ KUMAR VARSHNEY & OTHERS (SUPRA) IS DELIVERED, AFTER GIVIN G ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THUS THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 3.0 IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWE D FOR STATISTICAL PURPOSES ORDER PRONOUNCED IN THE OPEN COURT ON 08/10/201 5 SD/- VKJ-IH-RKSYKUH (R.P.TOLANI) U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 08 /10/ 2015 *MISHRA VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- M/S. ORIENTAL GEMCO (P) LTD., JAIPU R 2. IZR;FKHZ@ THE RESPONDENT- THE DCIT, CIRCLE- 2, JAIPUR 3. VK;DJ VK;QDRVIHY@ CIT(A). 4. VK;DJ VK;QDR@ CIT, 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR 6. XKMZ QKBZY@ GUARD FILE (ITA NO. 369/JP/2014) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR